Shabbir Ahamed Vs Abdul Rehaman

SHABBIR AHAMED S/O LATE BUDEN SAB, AGED ABOUT 66 YEARS, NOW R/A NO.21, 2^ND CROSS, ANKAPPA BLOCK, J.C. NAGAR NEAR MUBARAK MASJID MUNIREDDY PALYA BANGALORE-560 046.

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FIAZ AHAMED S/O LATE BUDEN SAB AGED ABOUT 57 YEARS, R/O BEHIND SHANKAR GARAGE, NEHRUNAGAR CHIKKAMAGALURU CITY-577 101.

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…APPELLANTS

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(BY SRI. N.MANOHAR, ADVOCATE)

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AND:

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ABDUL REHAMAN S/O LATE HAYATH HUSSAIN AGED ABOUT 69 YEARS, LORRY OWNER R/O OPP: GIRI LODGE, I.G ROAD, CHIKKAMAGALUR CITY-577 101.

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TAJMUL AGED ABOUT 45 YEARS,

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AMANUL AGED ABOUT 43 YEARS,

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ASGAR AGED ABOUT 40 YEARS,

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AKBAR AGED ABOUT 39 YEARS,

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TARA AGED ABOUT 37 YEARS,

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MISS LALA AGED ABOUT 35 YEARS,

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NO.2 TO 7 ARE THE CHILDREN OF LATE NAZEER AHMED

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SMT MAJUBI W/O LATE NAZEER AHAMED AGED ABOUT 73 YEARS,

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NO.2 TO 8 ARE R/O BEHIND SHANKAR GARAGE NEHRU NAGAR, VIJAYAPURA EXTENSION CHIKKAMAGALUR-577 101.

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MAIMUNNISSA AGED ABOUT 50 YEARS, W/O ABDUL RAHIMAN R/A SIDDARAMANAHALLI SINGATAGERE HOBLI, KADUR TALUK-577 138.

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C.V. VASUDEV AGED ABOUT 70 YEARS S/O LATE C.P. VENKATARAMU PROP: SRI RAMA SWEETS M.G.ROAD, CHIKMAGALUR CITY-577 101.

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C.H. ABDUL RAHIM @ VAZIR AGED ABOUT 56 YEARS, S/O LATE HAYATH HUSSAIN, R/O C.H.R BUILDING, HOTEL MAHARAJA I.G.ROAD, CHIKMAGALUR CITY-577 101.

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ABDUL RASHEED AHAMED S/O LATE BUDEN SAB, AGED ABOUT 58 YEARS, CAR DRIVER, MUTHANNA GARDEN, EXTENTION, 2^ND CROSS, BENSON TOWN, BANGALORE-560 046.

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RAFEEQ AHAMED S/O LATE BUDEN SAB AGED ABOUT 55 YEARS, TIMBER MERCHANT R/O BEHIND SHANKAR GARAGE, NEHRUNAGAR CHIKKAMAGALURU CITY-577 126.

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SINCE DEAD BY HIS LRS 13(1) GULNAZ W/O LATE RAFEEQ AHEMED AGED ABOUT 50 YEARS.

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13(2) SABIYA SULTHANA W/O MAHABOOB BASHA, D/O LATE RAFEEQ AHAMED AGED ABOUT 33 YEARS

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BOTH ARE R/A H.NO.1431, BENNERGHATTA ROAD, GOTTIGERE POST, BANGALORE 560 083.

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BALKIS BANU W/O K M SULAIMAN AGED ABOUT 42 YEARS, R/O KOPPA TOWN-577 126.

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BASHEER AHAMED S/O AYEEZ SAB AGED ABOUT 80 YEARS, R/O DR. PAIS COMPOUND CHIKKAMAGALUR-577 101.

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…RESPONDENTS

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(V/O DTD:14.10.2024, APPEAL STANDS DISMISSED AGAINST R1; R2, R3, R4, R5, R6, R7, R8, R10, R11 – ARE SERVED AND UNREPRESENTED; V/O DATED:24.04.2025 NOTICE TO R9, R12, R13(1 & 2), R14, R15 IS D/W)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO CALL FOR THE ENTIRE RECORDS FROM THE FILE OF THE 1^ST ADDL. DISTRICT JUDGE AT CHIKMAGALUR IN R.A.NO.41/2012 AND ALSO FROM ADDL. SENIOR CIVIL JUDGE AT CHIKMAGALUR IN O.S.NO.128/1997 AND SET ASIDE THE JUDGMENT AND DECREE DATED 05.01.2012 PASSED BY THE ADDL. SENIOR CIVIL JUDGE AND CHIKMAGALUR IN O.S.NO.128/1997 ANE ETC.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 25.10.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO

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CAV JUDGMENT

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The present Regular Second Appeal is filed by the plaintiffs to set aside the judgment and decree dated 08.03.2016, in R.A.No.41/2012 passed by the I Additional District Judge at Chikmagalur (hereinafter referred to as

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‘the first appellate Court’) and the judgment and decree

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dated 05.01.2012, in O.S.128/1997, passed by the Additional Senior Civil Judge at Chikmagalur (hereinafter referred to as ‘the trial Court’).

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The appellants herein are the

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plaintiffs/appellants before the Courts below and the respondents herein are the defendant/respondent before the Courts below.

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For convenience of reference, the parties herein

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are referred to as per the rankings before the trial Court.

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The plaintiffs filed O.S.No.128/1997 against the defendants on the file of the Additional Senior Civil Judge, Chikmagalur for the relief of partition and separate possession of their 2/5^th share over the suit schedule properties and also for accounts and mesne profits.

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5. The brief facts of the case are that:-

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It is the specific case of the plaintiffs that the suit schedule properties comprise two landed properties at

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Indavara Village and two house properties at Chikmagalur

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City, originally belonging to late Chabumiya, a Police Daffedar. After his and his wife’s demise, they were succeeded by three sons—late Hayath Hussain, late Buden Sab, and late Moideen Sab—and a daughter, late Smt. Hurmathbi. Since late Moideen Sab died unmarried, under Mohammedan Law, late Hayath Hussain and late Buden Sab each became entitled to 2/5^th share, and late Smt. Hurmathbi to 1/5^th share. On Buden Sab’s death in 1970, his 2/5^th share devolved upon the plaintiffs, who are now co-heirs and co-owners along with the defendants, in joint and constructive possession of the suit properties. After Chabumiya’s death, the katha was first mutated in the name of Hayath Hussain and later in the name of his wife, Smt. Zaheerabi.

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On 18.07.1997, the plaintiffs demanded partition and allotment of their 2/5^th share, but defendant No.1 gave evasive replies. Upon obtaining certified copies, the plaintiffs revealed that the katha had been transferred to defendant No.1 based on an alleged Land Tribunal

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grant. The plaintiffs contend that defendant No.1 was never a tenant of the lands, and the Land Tribunal proceedings, to which they were not parties, are neither valid nor binding on them. The plaintiffs further submit that late Hayath Hussain and Smt. Zaheerabi could not have leased the entire property, as their entitlement extended only to an undivided 2/5^th share. As the suit properties are situated near Chikmagalur City with potential for non-agricultural conversion, the plaintiffs seek a decree for partition and separate possession of their 2/5^th share, along with accounts and mesne profits.

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Per contra the defendant No.1, in his written statement admitted the relationship between the parties and asserted that suit items No.1 and 2 originally belonged to his father and were mortgaged to the PLD Bank, Chikmagalur, in 1965. He contended that he and his mother have been in continuous possession and enjoyment of these properties. After the death of Hayath Hussain, his wife and children were unable to cultivate the lands, which were thereafter managed by one Manjappa,

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who later made an unsuccessful ownership claim over suit items No.1 and 2.

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The defendant No.1, denied the possession or enjoyment of the said properties by the plaintiffs and other defendants. He further stated that he had no knowledge of suit item No.3, while suit item No.4 belonged to Hayath Hussain, purchased in the year 1930, and that he had demolished the old structure thereon and constructed a new building by borrowing a bank loan and investing his own savings. He further contended that the suit is barred by limitation, not properly valued and insufficiently stamped with court fees, and therefore prayed for the dismissal of the same.

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The defendants No.2 to 6 filed a separate written statement supporting the plaintiffs’ claim and sought their respective shares in the suit schedule properties. The defendant No.10, who was subsequently impleaded, filed his written statement denying ownership of any of the suit properties and contended that the suit suffers from misjoinder of parties.

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Based on the pleadings, the trial Court has

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framed following issues for consideration:-

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(i) Whether the plaintiff prove that the suit schedule properties were belonging to late Chabumiya, after his death, his three sons and one daughter have inherited the same under Mohammedan law?

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(ii) Whether the plaintiff proves that they are co-heirs and co-owners and in joint and constructive possession of the suit schedule properties along with defendants?

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(iii) Whether the first defendant proves that, item No.1, 2 and 4 were belonging to his father and he is the absolute owner and in exclusive possession of the same? (iv) Whether the first defendant proves that the suit is not properly valued and Court fee paid is insufficient?

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(v) Whether the first defendant proves that the suit is barred by limitation?

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(vi) Whether defendant No.10 proves that, this suit is bad for mis-joinder of unnecessary parties?

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(vii) Whether the plaintiffs are entitled for the partition and separate possession of their 2/5^th share in all the suit schedule properties?

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(viii) Whether the defendant No.2 to 8 are also entitled for their un-divided 2/5^th share in the suit schedule properties?

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(ix) Whether the plaintiffs are entitled for

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accounts and mesne profits as prayed for?

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(x) What order or decree?

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In order to substantiate his claim, the plaintiff examined himself as PW-1 and got marked the documents as per Exs.P1 to Ex. P13. On the other hand, the defendants to substantiate their defense, defendant No.1 got himself examined as DW1 and got documents marked as per Exs.D1 to D5.

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The trial Court based on the pleadings, oral and documentary evidence dismissed the suit with costs and held that the plaintiffs and defendants No.2 to 8 failed to prove they have got share over the suit schedule properties. Hence, the plaintiffs were not entitled for the relief of partition, accounts and mesne profits.

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Assailing the said Judgement and decree of the trial Court, the plaintiffs have preferred an appeal in R.A.No.41/2012.

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The first appellate Court has framed following

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issues for its consideration:-

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1. Whether the plaintiffs prove that the suit schedule properties belonging to late Chabumiya, after his death, his three sons and one daughter have inherited the same under Mohammedan law?

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2. Whether the plaintiff proves that they are co-heirs and co-owners and in joint and constructive possession of the suit schedule properties along with defendants?

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3. Whether the first defendant proves that, item No.1, 2 and 4 were belonging to his father and he is the absolute owner and in exclusive possession of the same?

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4. Whether the first defendant proves that the suit is not properly valued and Court fee paid is insufficient?

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5. Whether the first defendant proves

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that the suit is barred by limitation?

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6. Whether defendant No. 10 proves that, this suit is bad for mis-joinder of un-necessary parties?

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7. Whether the plaintiffs are entitled for partition and separate possession of their 2/5^th share in all the suit schedule properties?

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8. Whether the defendants No.2 to 8 are also entitled for their un-divided 2/5^th share in the suit schedule properties?

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9. Whether the plaintiffs are entitled for

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accounts and mesne profits as prayed for?

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10. What order or decree?

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The first appellate Court after considering the facts and circumstances of the case held that the concept of joint family property is not recognized under Mohammedan Law, as co-owners are merely tenants in common. No pleadings or evidence was produced showing that the disputed property was purchased from joint family funds or for joint family benefit. The plaintiffs also failed to prove joint or constructive possession, as admissions revealed long-standing separate residence, independent ownership, and lack of contribution toward taxes or construction expenses. Concluding that the plaintiffs had not substantiated their claims and had filed the suit to compel a compromise, the first appellate Court affirmed the judgment of the trial Court dismissing the suit.

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16. The learned counsel for the appellant has raised

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following substantial question of law for consideration of this Court:-

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(a) Whether on the basis of the revenue records mutated in the name of one of the sons (Hayath Hussain) after death of his Father (Chabumiya) can it be concluded that the other children of Chabumiya are not the inheritors of the estates of Chabumiya?

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(b) When the properties held by one of the son (Hayath Hussain) in trust for himself and other legal heirs of Chabumiya, can the Respondent No.1 who is the son of Hayath Hussain make an application before the authority and obtain a grant order in LRF No.44/75-76 behind the back of the Appellant?

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(c) Whether the court erred in not looking at the Exhibits P1 to P5 which were earlier marked and on the basis of which the Hon’ble Court had also passed Judgment and Decree in favour of the Appellant, which was subsequently set aside on the ground of Exparte and taken up again for fresh disposal. Whether is it not erroneous of not taking into account the Exhibits which were already marked earlier in the very same proceedings?

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(d) Whether the burden of proof regarding the ancestral property fixed by the Hon’ble Court on the Plaintiff who is alleging

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Ancestral property is proper when there is settled principles of law that mere averments of ancestral property gives presumption of ancestral property and it is the party who is disputing the ancestral property should prove that the property is not ancestral property?

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The learned counsel appearing for the

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appellants that the Courts below failed to appreciate that the property in question originally belonged to one Mr. Chabumiya and upon his demise, Mr. Hayath Hussain, being his eldest son, caused the revenue records to be mutated in his name only for and on behalf of the legal heirs of Mr. Chabumiya, holding the property in trust for them. The mutation of revenue entries in the name of Mr. Hayath Hussain did not extinguish or diminish the hereditary rights of the other legal heirs of Mr. Chabumiya. The Learned Judge further erred in concluding that respondent No.1, Mr. Abdul Rehman, son of Mr.Hayath Hussain, became the absolute owner of the property pursuant to the Order passed in LRF No. 44/75-76, without noting that such an order was obtained behind the

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back of these appellants, who have a lawful right, title, and interest over the suit schedule property.

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It is further contended that the Learned Judge also failed to appreciate that the LRF proceedings initiated by respondent No.1 were concealed from and conducted without notice to the appellants. Hence, the same was non-binding upon them. Further, it is contended that the appellants had not established that their father, Mr.Budden Sab, inherited the suit schedule property, ignoring the presumption of ancestral ownership, which the respondents failed to rebut. The documentary evidence adduced by the appellants was overlooked by the Courts below and arrived at an erroneous finding that the suit schedule property was the self-acquired property of respondent No.1. Furthermore, the documents relied upon and produced by the respondents were fabricated and concocted.

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Heard learned counsel appearing for the petitioner and perused the records.

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It is observed by the trial Court that the plaintiffs and defendants No.2 to 8 failed to prove that they have got share over the suit schedule properties. Hence, the plaintiffs are also not entitled for the relief of partition, accounts and mesne profits. The trial Court dismissed the suit filed by the plaintiffs with costs, which is confirmed by the first Appellate Court.

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On hearing the submissions of the counsel for the appellants, it appears that at the outset that this being a second appeal, it is only substantial question of law which gives raise for this Court to clutch the jurisdiction

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and answer the said question of law as otherwise, this Court would lack jurisdiction to entertain second appeal.

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In view of the forgoing discussions, this Regular Second Appeal lacks merit. Hence, Regular Second Appeal

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is Dismissed.

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Sd/(DR.K.MANMADHA RAO) JUDGE

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BNV

Shabbir Ahamed v. Abdul Rehaman

Case brief

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Shabbir Ahamed v. Abdul Rehaman

Case brief

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